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Duke  University  Libraries 

Memorial  to  the 
Conf  Pam  #661 


3S/i:eiviori^.l 


E^  HP  Tu^  CONFEDERATE  STATEIJ. 


MOBII.I..    I h Onion     \i,    186f5. 

\»  >..  .1.  llvi.i.ij,  •..   i.-v>......   ;,.^    author,  nnd  S,  H.  G(et7:kl,  of 

viTi.niu..,  i!i(v  publisher,  of  a  work  fsntiiled  •*  llardee'a  Rifle  ii^ud 
Inirvntry  tncfics,'"  whi^h  has  boon  revisoii  and  iuipiovetl  by  the  author 
;tt  the  ^'^nimonr(»inpnt:  >»f  ihf.  present  Mar,  humbly  inemorinlize  iho 
<  Mifrresp  of  ihe  Conf^derar.e  States  of  Amerioa,  lo  grant  a  special 
I    pv-rigut  therefor.  ;md  ass^i^n  an  reasons  the  io{]n\>  in<-  • 

\n  ISOA,  the  \\ork  Avas  completed  for  publicai<! 
.'  tii?i,,  II)iKd(;>e,  nnd  tlie  comract  ?>h-  priiuiijg/ i;itlv.',:.,r;iii;.ui ,- asia  pab- 
.^-hing  \va^  Tuade  with  LippincoM.  (ivambo  a:  CJo.,  oi' i^biladelphia, 
ibe  Oorigre^P  <>r  the  United  S:atop;  making- an  Jiippr-opi-iatiou  to  assists 
in  its  p'-.bhv-r.  h  on  conditiou  that  ibc  publishtT^  should  faraishthc) 
*'  ■'^''  United  Stater-  eij^^hteen  thou||ivi  copies,,  at.  on  • 

M<iii '.  ;    :  •    1'   .      .  iiis  condition  was  assented  to  arid  complied  witl. 
Tiie  auihor''*  t'iiiti  lit  with  the  publishers  was  that   they   should  p.' <' 

him '■ (•< Mi'. ;   per  copy,  for  eacli  copy  sold  over  and  above  tb; 

rJovern'iifmt  psi    li:  .^.  which  v.'.<":  :)rr.-rT:iri'>!  in'rea^ed  t'-  ■■ 

ived  under  it.  his  share  ot 

;  ed  t(;  bir. 

'V>v.  that  the  work  wn^  a 
■ ,  't.-i'i iiiii f  III   ili<-  tiiiiiiM)  1  111 . 


'II:  !i    il  llLUli  ,;lll  . 


ill  1  ..-nil'  .1  -^  lar^fj 


has  no  lot  or  share.  He  has  to  look  to  his  own  Government  ami 
people  for  compensation  for  his  mental  labor,  and  protection  from  an 
•nfrinsemen't  of  it.  His  remittances  under  his  contract  with  the 
I'hiladelphia  p'ublishers,  ceased  with  the  formation  of  the  Confederate 
iJovernment,  and  he  has  no  idea  thej  will  ever  again  acknowledge  the 
contract  which  existed  before  the  war,  even  if  the  <Jovernment  of  thr 
I'nited  States  has  oveilooked  the  author's  interest  in  the  contract  with 
them  (the  publishers)  in  their  efforts  to  confiscate  property  of  Con- 
federate citi/.ens. 

At  the  beginning  of  the  war  the  author  revised  his  original  work, 
as  published  in  Philadelphia  ;  made  many  material  iterations  and  im- 
provements therein,  thouth  leaving  it  substantially  tiie  same,  and  then 
made  a  contract  with  S.  II.  Ga't/el,  of  Mobile,  ibr  the  publication  of 
the  work  for  the  use  of  the  army  and  people  of  the  Confederate  States, 
l)y  which  contract,  the  said  Goetzel  was  to  take  out  a  copy-right  for 
the  same,  in  his  own  name,  incur  all  the  expense  of  publication,  and 
pay  to  the  said  Ilardec  twenty  cents  per  copy,  for  each  copy  sold. 

The  copy-right  of  said  work  was  duly  entered  and  secured  by  said 
Ga'tzel  in  the  form  and  manner  required  by  existing  laws  on  that 
subjec^,  in  the  clerk's  office  of  the  district  court  of  the  Confederate 
States,  for  the  district  of  Alabama,  and  since  tlien  nine  editions  of 
the  same  has  been  published  ;  and  the  said  Goetzel,  at  all  times,  kept 
on  hand  a  sufficient  number  of  copies  to  meet  all  reasonable  needs  and 
demands,  of  the  army  and  people  of  the  Confederate  States.  Although 
there  had  been  no  copy-right  secured  in  the  United  States,  as  we  had 
formed  a  separate  Government,  and  as  the  people  of  the  United  States 
had  become  a  foreign  people,  and  their  Government  a  foreign  Govern- 
ment, your  memorialists  considered  that  a  copy-right,  entered  and 
secured  under  the  Confederate  Government,  was  a  valid  right,  and 
•would  be  protected  by  the  Confederate  courts,  especially  as  the 
author  had  lost  all  his  rights  for  compensation,  under  his  contract 
with  a  citizen  of  the  United  States. 

Notwithstanding  the  copy-right  of  your  memorialist,  various  persons 
in  the  Confederate  States  have  published  pivate  editions  of  said 
■work,  and  have  been  selling  them  in  various  parts  of  the  country  to 
the  detriment  of  the  rights  and  interests  of  the  author  and  publisher 
thereof. 

The  republications  have  generally  been  of  the  old  Lijipiupott  edi- 
tion, and  not  containing  the  alterations,  changes  and  improvements 
made  by  the  genuine,  <>r  copy-right  edition,  which  are  important  and 
material,  and  which  has  created  some  confusion  in  army  instruciion 
because  of  different  versions  of  the  same  work, being  in  use. 

Your  memorialist  caused  a  bill  to  be  filed  in  the  district  court  of 
Alabama  against  Francis  Titcomb,  a  bookseller  in  ■Mobile,  wlio  kept 
on  sale  a  pivate  edition  of  said  work,  published  in  liichmond,  the 
same  being  a  copy  of  the  original  Lippincott  edition,  for  an  infringe- 
went  of  the  copy-right  of  your  memorialist,  on  which  a  prpvisional 
injunction  issued. 

The  same  proceedings  were  taken  against  one  Randolph,  of  Ricli- 
juond,  and  several  booksellers  in  Memphis  before  the  fall  of  that  place. 


The  cause  in  Mobile  was  tried  in  the  Confederate  States  district 
court  in  July,  1863,  on  hill,  answer  and  testimony,  and  after  elaborate 
argument  by  counsel,  the  judge  of  said  court  delivered  an  opinion 
adverse  to  your  memorialists  copy-right,  on  the  ground  that  the  suul 
work  was  published  in  the  United  States  in  t8od,  without  a  copy- 
right, at  a  time  the  two  countries  were  under  one  Government.  Th  • 
complainants  contended  that  was  a  foreign  publication,  and  as  it  wa^ 
shown  that  they  had  promptly  taken  out  a  copy-right  in  their  own 
country,  imd  undei'-their  own  laws,  the  original  publication  ought  nof 
to  prejudice  them  in  their  present  right,  and  especially,  as  the  author 
had  provided  witl#;he  original  publishers  reasonable  coraj)ensation  for 
himself,  and  as  the  work  lind  not  been  re-publisjied  in  the  United 
States  before  the  war,  and  no  probability  existed  of  it  ever  being 
re-published  by  any  other  person,  such  contract  secured  for  the  author 
all  the  benelits  of  a  copy- right. 

By  reason  of  the  war,  all  the  rights  and  benefits  under  that  contract 
have  been  lost,  and  your  memorialist  (Hardee)  could  not  now,  ami 
he  does  not,  believe  he  ever  will  be  permitted  to  enforcfe'that  contract 
in  the  United  States. 

As  soon  as  he  found  himself  in  this  condition  in  relation  to  hi^ 
work,  he  promptly  set  about  securing  his  rights  And  interests  in  his 
book  in  the  Confederate  States,  by  securing  the  copy-right  in  the 
name  of  the  publisher,  and  prosecuting,  under  the  law,  those  who 
infringed  it.  These  and  other  arguments  were  urged  at  the  bar  in 
support  of  the  copy- right,  but  the  learned  judge  thought  that  the 
technical  ground  of  former  publication,  which  made  the  work  puhlici 
Juris  to  tlie  people  of  the  Confederate  States  as  well  as  the  people  of 
the  United  States  was  against  us,  and  he  would  have  to  condemn  the 
copy-right. 

Of  course  the  other  cases  will  have  to  be  dismissed. 

Your  memorialist  therefore  respectfully  apply  to  your  honorable 
bodies  for  the  passage  of  an  act  granting  them  a  special  copy-right  in 
said  work,  yours  being  the  only  forum  they  can  now  apply  to  for  pro- 
tection of  their  rights  and  interest  as  author  and  publisher  of  tlie 
same. 

A  copy  of  the  opinion  of  the  Hon.  Wm.  G.  Jouesis  hereto  attached, 
and  made  a  part  of  this  memorial. 


IMPORTANT  DECISION  ON  COPY-RIGHT. 

At  the  late  term  of  the  Confederate  district  court  for  Mobile,  a 
case  involving  "copy-right"  was  heard  by  Judge  Jones.  The  plain- 
tiff was  S.  H.  Goetzel,  and  the  defendant,  F.  Titcomb,  botii  booksellers 
of  this  city.  The  former  grounded  his  action  on  a  copy-right 
obtained  by  him  to  "  Hardee's  Tactics,"  of  which  he  was  the  pub- 
lisher. The  defendant  had,  in  the  course  of  his  business,  sold  copies 
of  the  same  work  published  by  J.  W.  Randolph,  in  Richmond.  For 
this  alleged  invasiou  of  his  copy-right,  Mr.  Goetzel  filed  hl'i  bill  in 

pr'.1225 


tlie  district  court  somu  iuunth3  ago,  and  obtained  an  iuj auction 
against  Titcoub,  rcstraiuiu^  Liiu  IVoiu  selling  Uaudalph's  oditiou. 
The  case  was  heard  upon  ill  and  au^^wfr  of  the  pirtie<,  aud  proofs  ol" 
\¥itnesses,  and  was  argiu-d  for  the  pi  HUitif  by  Messrs.  Overall  aud  U. 
H.  Smith,  and  by  Mr.  W.  C.  Eastou  i"  r  Titcomb.  The  decision  ol 
the  court  is  against  tli..'  validity  of  tlio  copy-right  of  GLftzel  in  the 
work,  aud  his  proceeding  was  dismissed.  The  decree  of  Judge  Jones, 
copied  below,  sets  forth  the  grounds  of  his  decision  fully  : 

C.  !:>.   DisrkiLT  Culkt  at  MouiLt,  ) 
July,  1803.  S 

S.    11.    GOETZEL,   ET.    AL.    j  ^ 

VS.  in  Chancery. 

F.    TiTCO.MB,  ET   AL.  > 

There  is  no  doubt  or  dispute  a*;  to  the  material  facts  in  this  case, 
audits  decision  depen<ls  entirely  on  a  (juestion  of  law.  Whilst  Ge^u. 
Hardee  was  an  olficer  in  the  army  of  the  United  iStates,  and  before 
the  dissolution  of  the  Union,  he  prepared,  under  the  direction  of  the 
then  Secretary  of  War  of  the  United  States,  a  system  of  infantry  tac- 
tics, since  generally  known  as  Hardee's  Tactics.  The  work  being  ap- 
proved of  by  the  President,  it  was  published  in  Philadelphia,  in  1855, 
by  Lippincott,  Grarabo  k  Co  The  Congress  of  the  United  States 
made  an  appropriation  of  ;ji;2(),()Uil  for  stereotyping  the  work  and  of 
ii;i 8,000  for  the  purchase  of  18,00(1  copies  of  it  for  the  Government. 
The  publication  was  made  with  the  knowledge  and  consent  of  General 
(then  Lieutenant  Colonel,)  Hardee,  and  was  superintended  by  him. 
No  copyright  of  this  publication  was  then  claimed  or  taken  out. 
After  the  dissolution  of  the  Union  and  the  organization  of  the  Gov- 
ernment of  the  Confederate  States  and  the  coinmeneeiaent  of  this 
present  war,  there  sprang  up  a  greatdemand  for  this  work.  In  18(il, 
General  Hardee  made  some  slight  alterations  in  the  work,  ai.d  under 
an  arrangement  between  him  and  S.  PI.  Goetzel  Si,  Co.,  an  edition  of 
the  work,  with  the  alterations,  was  published  by  Geetzel  cNc  Co  ,  in 
1801,  in  Mobile.  Ga-tzel  &  Co.  duly  entered  the  title  of  the  work  in 
the  clerk's  office  of  the  Confederate  States  district  court  at  Mobile, 
and  took  out  a  copy  Wright,  In  the  same  year  (1801,)  J.  W.  Ran- 
dolph published  in  Richmond.  Va.,  an  edition  of  Hardee's  tactics  from 
and  corresponding  with  the  Philadelphia  edition  of  1855. 

The  defendant,  Titcomb,  a  bookseller  in  Mobile,  sold  here  some  copies 
of  Randolph's  edition  after  Gcetzel  &  Co.  had  taken  out  their  copy- 
right, and  the  bill  in  this  case  is  filed  to  prevent  Titcomb  from  sell- 
ing such  copies. 

I  do  not  think  it  necessary  to  decide  in  this  case  several  of  the 
fjnof'ions  which  were  raised  and  somewhat  discussed  at  the  bar.  The 
^  a.ri  question  ii^  the  case  is  the  right  of  Gen,  Hardee  or  of  Goetzel 
4V  Co,  to  take  out  a  copyright  for  this  work  in  1801,  It  is  admitted  that 
tiiO  Philadelphia  edition  of  1855,  and  Randolph's  edition  of  1861,  are 
precisely  alike,  and  substantially  the  same  as  Goctzel's  edition  of 
•  361,  the  only  difierence  being  some  alterations  made  by  the  author 
u  1861,  and  embraced  in  Goetzel's  edition.  They  are  all  substan- 
tially the  same. 


• 


It  is  quite  immaterial,  I  think,  in  thi.s  case,  whether  the  Philidel- 
pliia  edi:ion  of  1855  i:^  to  ha  i<*gar(Jed  a  Government  work  or  the  pri- 
vate wopk  of  Gen,  Ilardae  Wh-ther  the  one  or  the  other,  it  was 
undoubtedly  published  t>>  the  world  with  General  Hardee's  knowledge 
and  consent,  and  viili')uc  hi?  then  claiming  or  taking  out  a  copyright 
for  it.  This  was,  in  1113^  upinion,  a  dedication  of  the  work  to  the  public. 
It  became  then  what  the  law  books  term  publici  juris,  and  any  person 
in  the  Tlnited  States  then  embracing  .vhat  is  now  the  Confederate 
States,  had  a  right  to  publish  and  s-ell  as  many  editions  and  co[>ies  of 
it  as  he  pleased.  I  do  not  think  the  :?ece3sion  of  some  of  the  States 
and  the  formation  of  the  Governviieut  of  the  Confederate  States,  di- 
minished or  aftected  the  rights  of  the  public  or  increased  those  of 
Gen.  Hardee  iti  this  repect.  Cur  statute,  which  is  the  same  as  the  old 
Udited  States  statute,  does  not  permit  a  copyright  to  be  taken  out  for 
a  work  that  has  been  previously  published.  It  can  only  be  taken  out 
for  works  not  previously  published.  It  is  insisted  that  a  previous 
publication  in  a  foreign  country  does  not  preclude  an  author  from 
getting  a  copyright  for  the  same  work  in  his  own  country,  if  applied 
for  within  a  reasonable  time.  That  is  a  question  which  seems  never 
to  have  been  positively  or  definitely  decided  in  the  English  or  Ameri- 
can courts  ;  nor  do  I  think  it  necessary  to  decide  it  in  this  case.  The 
publication  of  the  Philad  dphia  edition  of  1855  was  made  when  this 
country  was  a  part  of  the  United  States.  It  w  as  then  a  publication  in 
this  country,  and  it  was  as  much  to  the  public  in  Virginia  or  Ala- 
bama as  the  public  of  Pennsylvania.  It  is  not  like  a  publicatioif  in  a 
foreign  country.  It  was  no  doubt  a  meritorious  act  in  the  gallant 
general  and  enteprising  publisher  to  prepare  and  publish  this  edition  ; 
but  I  am  fully  satisfied  they  had  no  legal  right  to  take  out  a  copy- 
right for  it.  The  bill  must,  therefore,  be  dismissed  at  the  cost  of  the 
complainants. 

Wm.  G.  Jones,  Judge. 


Memphis,  Tenn.,  July  6,  1861. 

S.  H.  Gcetzel: 

I  conipliame  with  your  letter,  I  also  confirm  our  verbal  understand- 
ing to  *hat  eflect,  that  you  and  your  partner,  under  the  style  and  firm 
of  S.  H.  Guetzel  k  Co.,  are,  and  shall  be  hereafter,  the  only  author- 
ized publishers  cf  my  "  Infantry  and  llifie  Tactics,"  provided  you 
pay  me  twenty  cents,  say  twenty  cents  of  each  copy  you  sell,  and  to 
render  account  three  times  a  year,  say  at  the  end  of  August,  Decem- 
ber and  April,  punctualh'. 

(Signed,)  W.  J.  HARDEE. 


Wm.  J.  Hardee,  for  sufficient  considerations  moving  him  thereto, 
by  these  presents  authorizes  and  empowers  S.  p.  Goetzel,  of  Mobile, 


Alabama,  to  institute  :ind  conduct,  in  auy  of  the  courts  of  the  Con- 
federate States  of  Aineiioa,  in  his  name,  .such  suits  at  law  ahd  in  equi- 
ty, and  to  do  such  other  acts  as  may  be  neces«ar\'Mjr  proper  to  vindi- 
cate and  ])rotect  a^^ainst  iufi  ingeiuLiit  the  copyrij;ht  of  t>.  H  G<ctzcl, 
in  the  book  of  siid  Hardee,  entitled  "  Ritie  and  Infantry  Tactics," 
granted  by  the  Confederate  States  of  America.  The  said  Goetzel, 
agreeing  to  bear  expenses  and  liabilities  of  such  suits  and  acts,  and 
to  exonerate  and  protect  him  against  the  same. 

Witness   my   liand,  this  tith    day   of  -'uly,  A.    I.'.,  l.S(j|,  Memphis. 
Tennessee. 

(Signed,)  W.  J.  HARDEE. 


NOTICE. 


So  many  editions  of  n  y  "  INFANTRY  AN  D  RIFLE  TACTICS  " 
having  lately  been  published,  I  think  it  due  to  both  the  public  and 
publishers  to  state  : 

Thnt  the  COPYRI'UIT  EDITION  of  my  INFANTRY  and  RIFLE 
TACTICS,  published  by  S.  II.  G<ETZEL  k  CO.,  in  MoniLE,  is  the 
only  COMPLETE,  CORRECT  and  REVISED  E DITTO Y,  and 
THIS  EDITION  o>LV  coutaius  the  improvernents  and  changes  which  I  have 
recei^fly  made,  adapting  the  manual  to  the  use  of  the  arms  generally 
in  the  hands  of  the  troops  in  the  Confederate  States. 

W.  J.  HARDEE, 
Colonel  Confederate  States  Army. 

Ft)rt  Morgan,  June    18,  1861. 

The  above  notice  is  printed  iu  the  front  of  each  volume  of  the  copy- 
right edition. 


pH8.5 


